Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part One in a Two-Part Series of Columns

The Supreme Court’s grant of cert. last month in the Texas college affirmative action case, Fisher v. University of Texas, has generated, and will continue to generate, tremendous buzz among commentators, educators and civil rights advocates. Whether the Court ends up completely or substantially eliminating race-based affirmative action (and even whether the Justices can overcome procedural hurdles to resolve the case on the merits at all) remains to be seen. But as my friend and fellow Verdict columnist Mike Dorf observed in his column on the Texas case earlier this week, the judicial opinions that emerge may very well fail to offer candid, honest treatment of the complex issues involved.

In my column today, the first in a two-part series of columns about the Court and its upcoming affirmative action case, I build upon this theme of intellectual insincerity, and describe in greater detail how the Justices have gotten to the point where neither wing of the Court seems remotely open to, or trustful of, the other on these matters.

As Mike explained, and as I chronicled in some detail in my first column on the Fisher litigation last year, there are a number of prior Supreme Court cases—Bakke, Croson, Grutter, Parents Involved, and a handful of others — that anyone trying to understand the constitutional law surrounding educational affirmative action should know about. These cases establish doctrinal rules—categories, boxes, standards of review, etc.—that apply to affirmative action programs. But these cases also illustrate that doctrinal tests are not self-implementing; even when all nine Justices largely agree about the legal standard that should govern, they can still disagree 5-4, and quite bitterly, over what the application of that abstract standard really means in actual disputes.

Moreover, these cases have created a voluminous track recordof intellectual sleight-of-hand that can explain why the affirmative action defenders and skeptics on the Court have good cause not to trust each other. I offer three examples below:

The First Example: The Liberals’ Unwillingness to Apply Meaningful Strict or Even Intermediate Scrutiny to Race-Based Programs

Consider first the case of City of Richmond v. Croson, where a divided Court struck down a Richmond, Virginia contracting set-aside program that reserved a certain percentage of the money the city spent on public construction contracts for minority-owned contracting companies. The City argued that the plan was necessary to remedy past discrimination, both by the City itself and within the private contracting industry and beyond, against minority contractors, but the majority (which included Chief Justice Rehnquist as well as Justices White, Stevens, O’Connor, Scalia, and Kennedy) rejected this justification (more on this in a moment).

The three dissenters—Justices Brennan, Marshall and Blackmun—would have upheld the plan by applying what they said was intermediate scrutiny to the measure, the same standard of review they had used to vote to invalidate virtually all gender-based laws they saw during their time on the Court. They would have upheld Richmond’s plan, under this supposedly forceful standard of review, even though the program embodied an overt quota—something the Court has said for decades is impermissibly rigid—and even though the remedial plan included as set-aside beneficiaries contracting companies owned by Aleuts, as if Richmond had a history of discriminating against Aleutian contractors in its recorded past.

The willingness of the liberal dissenters to defer to an obviously poorly crafted and mechanical plan that made use of race went a long way toward convincing the more conservative majority that the constitutional affirmative action battle would likely be waged in all-or-nothing (or close to it) terms, and that trying to identify a middle ground (the way the Court would do in the abortion setting in Planned Parenthood v. Casey three years later) would be a waste of effort.

The all-or-nothing question may now be in front of the Court again in Fisher, where observers openly wonder whether Justice Kennedy is still seeking, and can find, a middle ground from which he might invalidate the Texas plan, but still leave room for meaningfully effective diversity-promoting programs.

The Second Example: The Conservatives’ Unfair Treatment of Remedial Rationales

Let’s stay with Croson for a moment, because there is some intellectual dishonor to be seen in the conservative opinions there as well. The majority rejected the plan not just because, as described above, it was shoddily crafted. The majority also thought that the goal of remedying past discrimination was itself not one on which the City should be able to act easily without detailed findings (which the City had not made) as to exactly what discrimination occurred, and when, and by whom. Nobody denies that, in Richmond, there had been overwhelming, pervasive and persistent societal discrimination against African-Americans in particular for generations. Yet the main opinion in Croson said, in dismissing the relevance of this history: “It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination.”

This is true, but it would remain true even if Richmond had made the kind of findings of past discrimination that the conservative Justices said they wanted. Knowing the “when,” the “where,” and the “how much” about discrimination in the past still leaves unclear exactly what the world would look like today had that past wrongdoing never existed. To deny government the ability to redress past discrimination precisely because its enormity creates uncertainty about whether the proposed remedy is perfectly calibrated to the wrong creates a perverse situation in which the greater the past injustices are, the more powerless the government is today to deal with their effects—which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

For this reason, the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting. Instead, diversity of the student body as a pedagogical asset is the primary interest that universities assert to defend race-based programs. I do not disagree with the idea that diversity can be a compelling interest. But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious and compelling reason to maintain race-based programs. And yet, that honest reason why many proponents of affirmative action continue to think race-based programs are necessary is not discussed much in higher education cases, in large part because it was shut down unfairly in cases like Croson. Here, the conservative wing of the Court has brought about dishonesty in our conversation about race.

The Third Example: The Justices’ Treatment of History and Past Precedent

In the affirmative action setting, the Justices are often guilty of selective memory and quotation when it comes to the Court’s prior decisions. One of the most prominent examples of selective (mis)reading of a past precedent was the prominent invocation in 2007 of Brown v. Board of Education by Chief Justice Roberts’s plurality opinion (joined by Justices Scalia, Thomas and Alito) in the racial student-assignment cases (or “racial balancing” cases, as these “color-blind” Justices described them) from Seattle and Louisville. After asserting that “when it comes to using race to assign children to schools, history will be heard,” Chief Justice Roberts quoted language from Brown to the effect that “full compliance” with Brown‘s edict required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.”

It’s true that the Court wrote these words, which, when analyzed in isolation, seem to condemn all governmental consideration of the race of students. But to read Brown as a case about color-blindness is to ignore much of the analysis and language that the Court used to explain why it was invalidating the segregation schemes before it.

Indeed, perhaps the most famous language from Chief Justice Earl Warren’s opinion for the Court in Brown spoke not in terms of color-blindness, but in terms of the special damage that is done to minority racial groups when race is used by government in an overt attempt to create racial hierarchy and stigma: “To separate [African-American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

In other words, Chief Justice Robert’s plurality opinion quoted the language about achieving a “system of determining admission to public schools on a nonracial basis” without acknowledging that this language was used in a setting where—unlike the modern Seattle and Louisville settings—there was a clear stigma and message of inferiority visited upon one race. Such an omission is historically and intellectually misleading at the very least. Ultimately, while the result in Brown can be reconciled with a color-blind approach, the analysis and language in Brown, read in their entirety and against the historical backdrop that was 1954 America, do not really make Brown very strong stare decisis support for a total or near-total ban on governmental race consciousness.

Current proponents on the Court of a color-blind approach to the Fourteenth Amendment are also guilty of selective use of precedent when they invoke Justice Harlan’s dissent in Plessy v. Ferguson, the infamous 1896 case in which the Court, over Justice Harlan’s protestations, permitted Louisiana to mandate separate railway cars for blacks and whites. Today, supporters of a complete ban on government race-consciousness often invoke Justice Harlan’s famous statement that “[o]ur Constitution is color-blind,” largely because Harlan’s bottom-line vote in Plessy was legally right and morally just. Yet those who invoke Harlan ignore other language from his writing that focused not on absolute colorblindness, but instead on the need to avoid the creation of “caste” in the United States.

Because Louisiana’s (and most every other American government’s) use of race in the Nineteenth Century tended to promote a racial caste system, a statement back then about colorblindness and a statement about anti-caste principle meant the same practical thing. But now, in 2012, when the use of race in colleges does not seem to be deployed in support of, and is not likely to lead to, a racial caste system, we must interpret Harlan’s opinion more holistically, and should not wrench the “colorblind” sentence from its linguistic and historical context.

Indeed, there are yet other passages from Harlan’s dissent that advocates of modern colorblindness ignore even more tellingly. In describing the world that would result if government adhered to his prescription about the use of race, Harlan wrote: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it . . . holds fast to the principles of constitutional liberty.” Small wonder people who want to draw upon Harlan’s “colorblind” metaphor don’t mention where he himself believed that metaphor would lead us.

In my next column, Part Two in this series on the Court and affirmative action, I will explore some of the procedural machinations and dishonesties from the Court that the race-based affirmative action cases have generated. That column is currently scheduled to appear here on Justia’s Verdict on March 16.

Vikram David Amar is the Iwan Foundation Professor of Law and the Dean at the University of Illinois College of Law. Previously, he served as the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Enoch Wisner

I am not an attorney. My academic training is in US history and philosophy. I hope my confusion will be accepted charitably, then, when I observe that justices are supposed to seek the ends of the Constitution’s ideals, the blinders their predecessors in that regard being discounted to the degree their own blinders will permit. In this construction, Harlan’s statement of the ideal is not to be compromised by Harlan’s own limitations in living up to it.

The Constitution is, indeed, colorblind. It is we that are not. Isn’t it somewhat perverse to corrupt the more perfect ideal in order to afford allowances to the less perfect population?

If we allow our laws to be no better than we, we shall be left with poor laws, indeed. This, however, seems to be the supporting premise of shifting standards of individual conduct. It is, for example, the premise of the instant case: in order to remedy past discrimination, law is construed to admit future discrimination, validating the notion of discrimination, so long as some pretext can be fashioned to the effect that the proposed discrimination is in the public interest. What is not in the public interest, however?

What justice is, precisely, has been the topic of debate for millenia. What justice can be compared to, however, is clearer: it can be compared to the custom of “tossing” coins. Left entirely to the laws of chance and physics, any one of two players may win or lose disproportionately, or experience both equally; and this is just. If, however, the referee of this game were to observe that one player in the toss has disproportionately won or lost, what is he to do? Is he to interfere in the interest of “fairness,” and somehow engineer a reversal of fortunes for the player whose fortunes seem to be running unfairly against him, or is he to recognize that the only true fairness – justice – is to allow the outcomes to be determined by uninfluenced chance?

Strictly interpreted, and subject to as strict a standard of review, the 14th Amendment is proof against the charge that discrimination is tolerated, or our laws, responsible for disparate outcomes, if any. Our laws would not be to blame; and, if it can be demonstrated that any person or entity has discriminated (unlawfully) to an engineered and disadvantageous outcome, why would not our current system of tort law be adequate to the remedy?

Lesley Dowden

Harlan’s colorblindness is blinding him and the good ole white boys club. New members are coming.

I think it’s a critical error to ever ascribe this kind of meaning to any one case. Having read some fine biographies, but without Vic’s clerkship experience, the spectrum of judging, and what goes into deciding a case is beyond any one single case — but it makes it easier to comprehend in a short space of time.

Joe Simmons

The outline of this case provided by you and Professor Dorf is compelling. However, I find your critique of “The Justices’ Treatment of History and Past Precedent” less convincing.

You concede that the words of Brown “seem to condemn all governmental consideration of the race of students” and you concede that “the result in Brown can be reconciled with a color-blind approach” yet contend this is a flawed analysis. The allegedly lacking component of the “why” of Brown – to prevent the engendering of feelings of inferiority – was merely a consideration of how segregation can be harmful. It was an eloquent and reasonable supposition based on the issue of segregation before the Court, but it was not a legal principle. If we are to transform these kinds of considerations of harm into indispensable elements of legal principle, then no case will have relevance to any other unless the same supposition of harm might be found.

You deal with Harlan’s Plessy dissent in a similar fashion. You write:

“Today, supporters of a complete ban on government race-consciousness often invoke Justice Harlan’s famous statement that ‘[o]ur Constitution is color-blind,’ largely because Harlan’s bottom-line vote in Plessy was legally right and morally just.”

While Harlan did couch his opinion on the idea that the government cannot sanction classes, it was extremely significant that he extended this idea to a prohibition of race-based discrimination. As in Brown, his underlying supposition (that racial laws can create class divisions) was not a legal principle. The principle that “[o]ur Constitution is color-blind” is significant. His dicta, his judicial hunch about what would happen in society in the future is irrelevant. Legal principles promulgated by the Supreme Court do not depend on superfluous prognostications.

I am reminded of Justice Ginsburg’s comments on Roe v. Wader given to the NYT in a 2009 interview:

“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”Let us assume that Ginsburg is correct. I know she was not on the Court at the time and I do not recall any Justice in that case expressing this view in as many words but Ginsburg is an astute legal scholar. If we understand the case as she does, following your proposed mode of analysis, Roe v. Wade loses its applicability to later abortion cases where that concern may not be present. Or perhaps we read all the cases flowing from it as similarly based on thinning undesirables from the population.I don’t know that I have ever seen such stilted application of precedent as proposed here. I have read strained attempts to distinguish one case from another and I have read stingy application of precedent, but this strikes me as novel. The fact-specific considerations of harm did not constitute parts of a legal test and you do not claim so. You do not contest the legal principles that have long been drawn from Brown and Harlan’s Plessy dissent. You would simultaneously broaden and narrow the reach of these opinions, whether or not the same suppositions have any role in the instant case.Your analysis transforms the opinions into acts of judicial legislation rather than principled constitutional prohibitions. Lastly, reading cases as you propose invites all kind of mischief, as illustrated by Justice Ginsburg’s comments (not that she intended any mischief!).I would be honored and appreciative if you can indicate where I may be in error. Thank you. I sincerely look forward to the second part of this series.

Let me get out my conclusions mat. While the govenance of interstate commerce is color blind it dose create a cast system. Those who outprerform their competition recieve a verity of substantial benefits from the government.

Anither jump…

Black women have 78% survival rate after 5 years of treatment compared to 90% of white women. Which then does justice dictate. Those who have a higher rate of survival are then awarded necessary procedures and treatments based on statistics. Or are the inherant coften of health care not the governments main argument to the individual mandate. If so, they have placed the individual into a cast purely dependent on the risk vs succes rate in determining how a dollar is best spent. This being the factor for interstate commerce athority of congres. Now we have government coding the individual into a cast system. Statistaccly based on race.